Tuesday, April 25, 2006

This is a guest op-ed piece by Andrew Harden, a 20 (soon to be 21) year old student at a community college in Cleveland, Ohio. Andrew is studying web design and is also interested in studying journalism. He considers himself “an all around nerd” and has always had an interest in law and politics. In his “down time” he likes to read, loves movies, and enjoys (and pays for) music.-R.B.

Between The RIAA And A Hard Place.By Andrew Harden

In the case of Elektra v. Barker, attorneys for the Recording Industry Association of America have made the argument that simply having a "Shared" folder on your computer can be considered grounds for infringement and, by extension, prosecution. These RIAA lawsuits have long been criticized, and the arguments which the RIAA uses to support them have been as well. But this particular point is, at best, a Slippery Slope.

The problem with this is that nearly every PC in use right now, running a modern operating system like, for example, Microsoft Windows XP, has a "Shared" folder on it. In fact, it might even have several. But you know who created these folders? Not the people using them, not some fiendish Internet pirates (sans eye patch and cool boat), but rather, Microsoft itself. This folder, most likely called "Shared Documents" and perhaps its counterparts "Shared Pictures" and "Shared Music" were created by Microsoft's Windows installer program. They were placed by default. Is there an option during the installation process to stop this? No. Is there a way to stop the installer? Well yes, but that would involve the reverse engineering of proprietary code, which might involve copyright violation by itself.

In Apple's OS X (my OS of choice), we have the same thing. I have a folder called, simply, "Shared." Again, written to my computer by the installation program.

What are these folders for, you ask? Well, you see, modern operating systems are becoming more modular for security reasons. Each user should have their own account. In OS X, this means that each user has a "Home" folder, which contains all of that user’s applications, documents, pictures, movies, etc. In Windows, that means each users has their own "My Documents" and other "My..." folders. The goal is to only give access to certain things to people who have the right "credentials," which for computers, means the right password. Just like your bank account.

So if I was subpoenaed right now, the RIAA would find a "Shared" folder. Not only that, but they'd also find that my computer features an easy way to connect to other computers, via the Internet or through a Local Area Network (LAN). In fact, I'm connected to another computer right now, the HP sitting in my living room.

Obviously, I must be a pirate. A criminal, out to infringe on everyone's copyrights for the sheer "stick it to the man," "fight the power" thrill of it all. But really that's not it. I do it to share Word documents between the two computers. Word documents that I created and that I own the copyright on by virtue of the fact that I created them. I do it because I use a Mac, but my school is predominantly Windows, and I need to make sure stuff I create on my Mac works the same way on a Windows box.

But other people do it to check the kids’ homework, or to have access to the photos from last year’s trip to Florida. In fact, these are two scenarios mentioned explicitly in Microsoft's Help files regarding, you guessed it, Sharing.

There's another reason people might use this feature. Redundancy. Redundancy is a very good thing in the computer world. Truth is, computers aren't bullet proof. They crash, they get viruses, and they somehow just do their own thing sometimes. Stuff gets lost. People get upset. But if I have two copies of something, say, a report I did in Microsoft Word, then I don't have to worry as much about losing it because guess what? I've got another copy somewhere else.

This issue of redundancy, or as us computer-types like to call it, backup, is an important one, especially with regards to the RIAA and its legal campaign. The argument has been made that copying a file is infringement. But when I use my iPod for example, I'm making a copy. The songs I have in my collection don't move from my hard drive onto the one in my iPod, they are copied there. That means I paid once, but I've got two copies of it. TiVo does the same thing, it copies shows and holds them (even if it's only for a limited time). This is all digital, 1's and 0's sitting on a magnetic piece of film, or engraved into microscopic hills and valleys on the surface of a CD or DVD. But even in the physical world, it's good to have copies. What happens if you lose your favorite CD? What happens if the kids, in the process of being kids, destroy their favorite Disney flick?

For us, the consumers, the obvious answer would be to make a copy, so in these situations, we don't have to pay more money. But that is a bad thing for the RIAA. Because that means they're getting less money from you, and money is what they’re really after. In short, they seek to make backup, or "home taping," or "memorializing" or whatever you want to call it, illegal. Because after all, if you want any content, you should pay for it every single time you want it.

As I said earlier, this is a slippery slope. If we stand on the precipice and look just a few hundred feet below, we'll see something called the Intellectual Property Protection Act of 2006. IPPA would increase the penalties for infringement, and make attempting infringement illegal. Under IPPA, "...nobody may 'make, import, export, obtain control of, or possess such anti-circumvention tools if they may be redistributed to someone else.'" Here's the problem with a law like this: it applies to entirely too much stuff. Stand up and look around, and raise your hand if you see a

Computer

Printer

Fax Machine

Photocopier

VCR

TiVo or DVR

Camera

Scanner

Audio recorder

All of these things are “tools” that can be used to "circumvent" anti-piracy measures. In fact, I don't even need any of these at all. If I watch a movie and then tell someone what I just saw I have, in effect, circumvented its protection measures. I've broken the law. If I turn my stereo up just a little too high, so the neighbors hear it, then they're listening to that CD for free. Circumvention.

This is the problem with the RIAA campaign. It's really not about protecting artists. Artists are doing just fine thank you very much. In fact, thanks to the Internet artists are finding new ways to do even better, and some artists which wouldn't even be doing anything without it finally can reach an audience. How is this a bad thing?

This campaign isn't about stopping piracy; it's about control. Instead of adapting to new technology, which is usually what happens, instead of finding a new business model, which is key to having a successful business, the RIAA is out to litigate the market into submission. Buy they're product, give them your money, or you'll get sued, and you'll have to give them more money. Afterwards, continue to buy their product and give them money.

In the entire legal history of copyright, such a situation has never existed. Sure, there have been people who fought new technology, but the tech always won out. It won because it makes things easier. Sometimes that sucks for certain folk but you know what, that's life. But now, for the first time, it's entirely possible that the opposite will happen. That profits and lobbying will truly defeat innovation by pushing it to the black market. Napster wasn't about stealing, it was about sharing with the world and showing people things they never could've seen (well, heard) any other way. Putting a song online isn't a way of saying "Screw those RIAA guys," it's a way for me to tell the world what I think is cool. That's the heart of the Internet, me connecting with the world. This is why Microsoft and Apple give me Shared folders, because connecting with people is good in a warm and fuzzy kind of way.

The real pirates? The ones pressing 500 CDs a month and selling them? They're still going strong. The ones who just don't want to pay for music? They're still not paying, because as long as it's out in the world, there's a way to get it. But the rest of us? We get the burden. We have to sit through annoying ads before our DVD starts playing, we get the lectures that "sharing is stealing, and stealing is wrong." The ones who obey the laws are the ones who ultimately get punished, how decidedly un-American. Even people who don't own computers get sued. MIT students are being told to drop out of school, and even the dead get served with legal papers. These aren't solutions; they're more problems.

Whenever a new technology has disrupted copyright, we’ve changed copyright. Copyright isn’t an ethical proposition; it’s a utilitarian one. There’s nothing moral about paying a composer tuppence for the piano-roll rights, there’s nothing immoral about not paying Hollywood for the right to videotape a movie off your TV. They’re just the best way of balancing out so that people’s physical property rights in their VCRs and phonographs are respected and so that creators get enough of a dangling carrot to go on making shows and music and books and paintings.

Technology that disrupts copyright does so because it simplifies and cheapens creation, reproduction and distribution. The existing copyright businesses exploit inefficiencies in the old production, reproduction and distribution system, and they’ll be weakened by the new technology. But new technology always gives us more art with a wider reach: that’s what tech is for.

Tech gives us bigger pies that more artists can get a bite out of. That’s been tacitly acknowledged at every stage of the copyfight since the piano roll. When copyright and technology collide, it’s copyright that changes.

Which means that today’s copyright – the thing that DRM nominally props up – didn’t come down off the mountain on two stone tablets. It was created in living memory to accommodate the technical reality created by the inventors of the previous generation. To abandon invention now robs tomorrow’s artists of the new businesses and new reach and new audiences that the Internet and the PC can give them-Cory Doctorow,Speech to Microsoft Research Group..

Elektra v. Barker won’t destroy the Internet, it’s too big and at this point, too necessary to be litigated out of existence. But it will set a dangerous precedent, where innovation becomes second fiddle to profit margins and revenue streams. It will signal the end of adaptability in business. Businesses won’t need to change with the times, they’ll be able to change the times themselves. Instead of finding a new model, or making better product, you can just rent a congressperson get a bill passed, and change the rules to suit your needs. Instead of changing your strategy to win the game, you can now just change the game. “Copyright” will become the most feared word in America, the way “Communism” once was. And in the end, we as consumers, customers, fans, and even creators, won’t have any rights. That is a frightening proposition.

Friday, April 21, 2006

In an April 20th decision, the federal court in the Northern District of California has found reasonable cause to believe that UMG Recordings and Capitol Records misled the United States Department of Justice ("DOJ") when the DOJ was investigating possible anticompetitive conduct by them in attempting to control the digital music business.

The RIAA's case against 14-year old Brittany Chan, in Port Huron, Michigan, has been dismissed, due to the RIAA's disobedience of the Court's order to submit a functional proposal for the appointment of a guardian ad litem for the defendant:

Tuesday, April 18, 2006

In Warner v. Does, the case where two Two "John Does", one from the Southwest, the other from the Greater New York area, have joined forces in Manhattan to fight back against the RIAA, the RIAA has now filed its papers opposing the defendants' motion to vacate the ex parte discovery order, quash the subpoena, and sever and dismiss as to John Does 2-149.

As they did in the Motown v. Does 1-99 case, they stayed away from getting into the embarrassing factual quagmire they had invited in an earlier motion, in Atlantic v. Does 1-25, where they introduced a second declaration by RIAA executive Jonathan Whitehead which contradicted his first declaration, in an unsuccessful attempt to rebut the attack by computer programmer Zi Mei on the legitimacy of the RIAA's "investigation". In this case, as in Motown, they only introduced a memorandum of law by their counsel.

John Does 37 and 61 have asked Judge Owen for a stay of the ex parte order and subpoena pending determination of their motion, since the turning over of their identities before the motion is decided would moot the motion.

2. The Court apparently thought, mistakenly, that the 'exhibit A' songs were songs that the RIAA claimed had been illegally downloaded or uploaded (as opposed to songs that the RIAA had ITSELF downloaded):

it is clear to the court that exhibit B is an alleged representation of Duty's Kazaa share folder, and that exhibit A is a list of some songs that the Recording Companies claim were illegally downloaded or distributed by Duty through her Kazaa share folder.

4. The Court stated that its decision was based in part upon the fact that it did not fully understand the Kazaa technology:

we do not conclude that the mere presence of copyrighted sound recordings in Duty's share file constitutes copyright infringement. We have an incomplete understanding of the Kazaa technology at this stage, and the ultimate issue of liability is more appropriately considered on a motion for summary judgment where the parties will have an opportunity to fully explain the Kazaa technology, and the means by which a file can be made available for public download on Kazaa.

5. The Court stated that Kazaa's misconduct may constitute a defense for defendant:

Duty argues that to the extent copyright infringement took place, it was not caused by her because Kazaa has an automatic upload feature which causes any user to unknowingly distribute computer files over the internet. To the extent this is true, it might be a valid defense.

Friday, April 14, 2006

Court records indicate that the RIAA, which is fond of serving massive written discovery requests on the defendants, is itself none too eager to respond to written discovery requests which the defendants themselves serve on the RIAA.

In Elektra v. Santangelo, in White Plains, the RIAA has served lengthy objections on both the interrogatories and the document requests which Patricia Santangelo's lawyer served upon them.

The following are Ms. Santangelo's lawyer's responses to the RIAA's "objections":

I received this email from a reader in Pennsylvania. I reproduce it here because I think it captures the torture and anxiety that so many Americans are facing due to the out of control litigation campaign of the RIAA.-R.B.

I am being sued by the RIAA for copyright infringement, and the case has been going on for the past 2 years.

So far they have deposed all 5 of my children, and my wife, and myself. I also had to fill out admissions and interrogatory answers twice so far and they are still not satisfied with my answers. Most of them I answered that I did not know. I did not know, and was completely unaware of whatever the RIAA is claiming happened. My responses were honest, but that was not good enough for them.

I am defending myself in this case because I can't afford a lawyer, and it's hard for me to understand all of the paperwork and the rules of the court. The RIAA is on its 6th different group of lawyers. It seems like they are bottom feeders.

I was just in court in Philadelphia with the RIAA's Philadelphia representative.

I had been called into court by the judge, Judge Cynthia Rufe, because I had not responded to the RIAA's second motion to compel even more discovery.

The judge gave me additional time to send in the paperwork, and stated that she intends to set up a trial date sometime in May.

The real shame is that I had no knowledge of any of this until I was served in the mail. Apparently my daughter who was 12 years old at the time had been listening to music on Kazaa

I do not even know how it got on the computer.

I know that I didn't do anything wrong and I am going to defend myself, but I'm scared to death of the outcome.

Friday, April 07, 2006

In Interscope v. Does, in Manhattan federal court, where a "Jane Doe" made a motion to quash the RIAA's subpoena to discover her identity, on the ground that the complaint failed to state a claim, Judge Richard J. Holwell on April 6th entered an order denying Jane Doe's motion, and giving the RIAA twenty (20) days to make service upon Ms. "Doe".

Wednesday, April 05, 2006

The United States Attorney's Office has written to the judge in Elektra v. Barker, indicating that the Department of Justice may wish to file a "Statement of Interest" in the case in order to "express the views of the United States regarding the scope of the distribution right embodied in sec. 106(3) of the Copyright Act."

Tuesday, April 04, 2006

Here is a partial list of pending RIAA v. Consumer cases going on in the Southern District of New York, Manhattan and Westchester federal courts. If you know of any cases that I've missed, please email me, or put in a comment, with the case number. Thanks.-R.B.

Monday, April 03, 2006

Excellent article by J. T. Ramsay in PitchforkMedia.com interviewing digital music expert Steve Gordon on the RIAA's war against competition in the digital music field:

Mon:04-03-06Live at the Witch TrialsStory by J T. Ramsay

*****Pitchfork: Define intellectual property law's application to the music business, and, if you can, explain in plain language the rules of ownership and copyright when it comes to music. Also is there a distinction between file sharing and P2P downloading?

Gordon: The copyright law provides protection for music-- both for the songs (musical composition) and the musical recordings (sound recordings). Under copyright law no one but the copyright owners can make copies of either songs or recordings and distribute those copies to others. Without the copyright law the record companies, which own the recordings, and the songwriters and music publishers, which control the songs, could not make a living. The copyright law also affords other exclusive rights, including making derivative works or variations, and public performance. These rights also contribute directly to the income of those who create music.

The distinction to be made is that if you wrote and recorded your own music, rather than other people's music, you don't need permission to share it. So a band that allows people to download their music from their blog or website is not violating any copyrights so long they wrote and recorded the music and did not enter into an exclusive recording contract that gives labels the right to distribute the music.

Pitchfork: Tell us about the RIAA's lawsuits.

Gordon: They are suing people for sharing recordings without the permission of the copyright owners. Generally they demand several thousand dollars and refuse to negotiate. Many defendants are dissuaded from fighting the cases because hiring a lawyer can quickly add up to more than what the RIAA will accept to settle.

Pitchfork: Of what consequence are these sums? How are they to be distributed to all concerned parties? (Is this really about the artists?)

Gordon: That's a great question! The lawyers are definitely getting some of it because the RIAA farms the cases out to private firms. Of course, some it has to pay as salaries to all those new lawyers the RIAA has hired in the past several years. What's left is possibly distributed to the record company members of the RIAA. It is not clear whether the artists share in any of these monies.

Pitchfork: Explain the subpoena power in these cases, and how it has been used to identify alleged downloaders, heretofore referred to as John/Jane Does?

Gordon: The RIAA initially used a provision in the Copyright Act they thought allowed them to demand names of ISP subscribers who uploaded files in unauthorized P2P services. But the ISPs, specifically-- Verizon resisted, arguing that the record companies did not have the right to their subscribers names. The federal court agreed. Although this made it harder and more expensive to initiate law suits, the RIAA forged on and are now suing more individuals than ever.

Pitchfork: Why are children being targeted in these cases?

Gordon: If the ISP addresses belong to children they can be the defendants. This is due to the fact that RIAA can only get limited info on its targets. In addition to children they are suing soccer moms and grandmothers who may not even know what file-sharing is. Their children or their children's friends are maybe using their ISP addresses to grab free music. So a lot of innocent people are being targeted.

Pitchfork: Is a political message being sent with these cases? Are they a witch hunt?

Gordon: The RIAA hopes to send the message that there are negative consequences for unauthorized music file sharing. One problem is that they may be targeting the wrong people and there may be backlash by the public. Music fans are turned off to the labels for life.

******************Pitchfork: Next steps: Is there a compromise that can be reached between the industry and the consumer? If so, what is it?

Gordon: I am in favor of a levy on those who truly profit from "free music," that is the electronics business and the ISPs. In exchange, all music file sharing would be legal. This plan would a. compensate the labels and the artists; b. provide music lovers with access to any music ever recorded any time they wish to hear it; c. eliminate the RIAA's lawsuits against consumers

In order to get "free music" you need a computer. You also need a fast internet connection. In addition, if you want to hear your free music at the gym or on the subway you need to buy an iPod or other mp3 player. So you are paying a lot for "free" music. But the money is going to computer and mp3 player manufacturers, and ISPs rather than music content companies. If we imposed a very small tax on sales of computers, mp3 players, and broadband subscription, we could compensate the record companies and the artists. And the RIAA could stop suing their own customers!

Yet the major labels continue to reject this position. Why? At least one of the majors, Sony BMG is partially controlled by a major electronics company. Another reason is that under this scheme the record companies would have to split 50/50 with the artists. The labels rarely pay artists any royalties now because the artists only generally get 10% to 20% royalty after they recoup production and certain marketing costs.

The record companies are desperately still trying to shut down the free digital flow of music and recapture control over pricing so they can sell music for whatever price they want and people will be forced to buy it. Unfortunately, huge economic forces-- the interests of the electronics and broadband industries-- are allied against them. In addition, the technology itself makes it so easy and fast to share music, that sooner than later the labels may become sufficiently enough to embrace this solution -- even if it means the artist would make some of the profits!

The case was first assigned to Judge John G. Koeltl, who recused himself.

The case was then reassigned to Judge Alvin K. Hellerstein, who likewise recused himself.

Then the case was reassigned to Judge Richard Owen, who granted the RIAA's "ex parte" applications for discovery, and authorized subpoenas to be served on the internet service provider Time Warner Cable.

John Doe #37 and John Doe #61 have both hired Ty Rogers and Ray Beckerman of Beldock Levine & Hoffman LLP to make a motion to (a) vacate the ex parte discovery orders, (b) quash any subpoenas issued under the orders, and (c) sever and dismiss the action as to John Does 2-149.

John Does 37 and 61 have asked Judge Owen for a stay of the ex parte order and subpoena pending determination of their motion, since the turning over of their identities before the motion is decided would moot the motion.

Ray Beckerman, the author of this blog and one of the attorneys for the moving parties, had this comment:

It is a matter of great significance that two different John Does have teamed up in the same case. This cuts the legal costs to each litigant by half, thus reducing the overall economic balance which ordinarily inheres in these cases. I hope this presages a new trend: people banding together to fight back. The old adage 'united we stand, divided we fall', is very important in the war against the RIAA's litigation machine.

I am a business lawyer in New York City, practicing at Ray Beckerman, P.C.. The purpose of this site is to collect and share information about the wave of sham "copyright infringement" lawsuits started by four large record companies, and other areas of concern to digital online copyright law, and to internet law in general. -Ray Beckermanbeckermanlegal.com(Attorney Advertising)

"[T]he Court is concerned about the lack of facts establishing that Defendant was using that IP address at that particular time. Indeed, the [complaint] does not explain what link, if any, there is between Defendant and the IP address. It is possible that Plaintiff sued Defendant because he is the subscriber to IP address .... As recognized by many courts, just because an IP address is registered to an individual does not mean that he or she is guilty of infringement when that IP address is used to commit infringing activity." -Hon. Barry Ted Moskowitz, Chief Judge, S.D. California. January 29, 2013, AF Holdings v. Rogers"The complaints assert that the defendants – identified only by IP address – were the individuals who downloaded the subject “work” and participated in the BitTorrent swarm. However, the assumption that the person who pays for Internet access at a given location is the same individual who allegedly downloaded a single sexually explicit film is tenuous, and one that has grown more so over time." - Hon. Gary R. Brown, Magistrate Judge, E.D.N.Y. May 1, 2012, K-Beech v. Does 1-37"The concern of this Court is that in these lawsuits, potentially meritorious legal and factual defenses are not being litigated, and instead, the federal judiciary is being used as a hammer by a small group of plaintiffs to pound settlements out of unrepresented defendants."-Hon. S. James Otero, Dist. Judge, Central Dist. California, March 2, 2007, Elektra v. O'Brien, 2007 ILRWeb (P&F) 1555"The University has adequately demonstrated that it is not able to identify the alleged infringers with a reasonable degree of technical certainty...[C]ompliance with the subpoena as to the IP addresses represented by these Defendants would expose innocent parties to intrusive discovery....[T]he Court declines to authorize discovery and quashes the subpoena as to Does # 8, 9, and 14" -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, November 24, 2008, London-Sire Records v. Does 1-4"[C]ounsel representing the record companies have an ethical obligation to fully understand that they are fighting people without lawyers... that the formalities of this are basically bankrupting people, and it's terribly critical that you stop it...." -Hon. Nancy Gertner, Dist. Judge, Dist. Massachusetts, June 17, 2008, London-Sire v. Does 1-4"Rule 11(b)(3) requires that a representation in a pleading have evidentiary support and one wonders if the Plaintiffs are intentionally flouting that requirement in order to make their discovery efforts more convenient or to avoid paying the proper filing fees. In my view, the Court would be well within its power to direct the Plaintiffs to show cause why they have not violated Rule 11(b) with their allegations respecting joinder. [I]t is difficult to ignore the kind of gamesmanship that is going on here.....These plaintiffs have devised a clever scheme... to obtain court-authorized discovery prior to the service of complaints, but it troubles me that they do so with impunity and at the expense of the requirements of Rule 11(b)(3) because they have no good faith evidentiary basis to believe the cases should be joined." -Hon. Margaret J. Kravchuk, Magistrate Judge, District of Maine, January 25, 2008, Arista v. Does 1-27, 2008 WL 222283, modified Oct. 29, 2008"[N]either the parties' submissions nor the Court's own research has revealed any case holding the mere owner of an internet account contributorily or vicariously liable for the infringing activities of third persons.....In addition to the weakness of the secondary copyright infringement claims against Ms. Foster, there is a question of the plaintiffs' motivations in pursuing them..... [T]here is an appearance that the plaintiffs initiated the secondary infringement claims to press Ms. Foster into settlement after they had ceased to believe she was a direct or "primary" infringer." -Hon. Lee R. West, District Judge, Western District of Oklahoma, February 6, 2007, Capitol v. Foster, 2007 WL 1028532"[A]n overwhelming majority of cases brought by recording companies against individuals are resolved without so much as an appearance by the defendant, usually through default judgment or stipulated dismissal.....The Defendant Does cannot question the propriety of joinder if they do not set foot in the courthouse." -Hon. S. James Otero, Central District of California, August 29, 2007, SONY BMG v. Does 1-5, 2007 ILRWeb (P&F) 2535"Plaintiffs are ordered to file any future cases of this nature against one defendant at a time, and may not join defendants for their convenience."-Hon. Sam Sparks and Hon. Lee Yeakel, District Judges, Western District of Texas, November 17, 2004, Fonovisa v. Does 1-41, 2004 ILRWeb (P&F) 3053"The Court is unaware of any other authority that authorizes the ex parte subpoena requested by plaintiffs."-Hon. Walter D. Kelley, Jr., District Judge, Eastern District of Virginia, July 12, 2007, Interscope v. Does 1-7, 494 F. Supp. 2d 388, vacated on reconsideration 6/20/08"Plaintiffs contend that unless the Court allows ex parte immediate discovery, they will be irreparably harmed. While the Court does not dispute that infringement of a copyright results in harm, it requires a Coleridgian "suspension of disbelief" to accept that the harm is irreparable, especially when monetary damages can cure any alleged violation. On the other hand, the harm related to disclosure of confidential information in a student or faculty member's Internet files can be equally harmful.....Moreover, ex parte proceedings should be the exception, not the rule."-Hon. Lorenzo F. Garcia, Magistrate Judge, District of New Mexico, May 24, 2007, Capitol v. Does 1-16, 2007 WL 1893603"'Statutory damages must still bear some relation to actual damages." Hon. Michael J. Davis, Dist. Judge, U.S.District Court, Dist. Minnesota, January 22, 2010, Capitol Records v. Thomas-Rasset"[T]his court finds that defendants' use of the same ISP and P2P networks to allegedly commit copyright infringement is, without more, insufficient for permissive joinder under Rule 20. This court will sever not only the moving defendants from this action, but all other Doe defendants except Doe 2." -Hon. W. Earl Britt, District Judge, Eastern District of North Carolina, February 27, 2008, LaFace v. Does 1-38, 2008 WL 544992"[L]arge awards of statutory damages can raise due process concerns. Extending the reasoning of Gore and its progeny, a number of courts have recognized that an award of statutory damages may violate due process if the amount of the award is "out of all reasonable proportion" to the actual harm caused by a defendant's conduct.[T]hese cases are doubtlessly correct to note that a punitive and grossly excessive statutory damages award violates the Due Process Clause....."Hon. Marilyn Hall Patel, Dist. Judge, N.D. California, June 1, 2005, In re Napster, 2005 US DIST Lexis 11498, 2005 WL 1287611"[P]laintiffs can cite to no case foreclosing the applicability of the due process clause to the aggregation of minimum statutory damages proscribed under the Copyright Act. On the other hand, Lindor cites to case law and to law review articles suggesting that, in a proper case, a court may extend its current due process jurisprudence prohibiting grossly excessive punitive jury awards to prohibit the award of statutory damages mandated under the Copyright Act if they are grossly in excess of the actual damages suffered....."-Hon. David G. Trager, Senior District Judge, Eastern Dist. New York, November 9, 2006, UMG v. Lindor, 2006 U.S. Dist. LEXIS 83486, 2006 WL 3335048"'[S]tatutory damages should bear some relation to actual damages suffered'....(citations omitted) and 'cannot be divorced entirely from economic reality'". -Hon. Shira A. Scheindlin, Dist. Judge, Southern Dist. New York, August 19, 2008, Yurman v. Castaneda"The Court would be remiss if it did not take this opportunity to implore Congress to amend the Copyright Act to address liability and damages in peer to peer network cases.... The defendant is an individual, a consumer. She is not a business. She sought no profit from her acts..... [T]he damages awarded in this case are wholly disproportionate to the damages suffered by Plaintiffs." -Hon. Michael J. Davis, District Judge, Dist. Minnesota, September 24, 2008, Capitol v. Thomas"If there is an asymmetry in copyright, it is one that actually favors defendants. The successful assertion of a copyright confirms the plaintiff's possession of an exclusive, and sometimes very valuable, right, and thus gives it an incentive to spend heavily on litigation. In contrast, a successful defense against a copyright claim, when it throws the copyrighted work into the public domain, benefits all users of the public domain, not just the defendant; he obtains no exclusive right and so his incentive to spend on defense is reduced and he may be forced into an unfavorable settlement." US Court of Appeals, 7th Cir., July 9, 2008, Eagle Services Corp. v. H20 Industrial Services, Inc., 532 F.3d 620"Customers who download music and movies for free would not necessarily spend money to acquire the same product.....RIAA’s request problematically assumes that every illegal download resulted in a lost sale."-Hon. James P. Jones, Dist. Judge, Western Dist. Virginia, November 7, 2008, USA v. Dove